Fish and Wildlife Service often sued for failing to do homework

Lawsuits involving developers, environmentalists and other government agencies portray a federal agency with a penchant for making arbitrary decisions and failing to adhere to the requirements of the Endangered Species Act

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Today’s filing of a lawsuit by 12 Southern California water agencies against the U.S. Fish and Wildlife Service is the latest in a series of legal complaints about the Service’s failure to do its job.

The federal agency has a history of designating public lands and watersheds as “critical habitat” for various endangered species without first performing the requisite analysis to determine whether such actions will significantly benefit the species in question.

“The Service has a history of making arbitrary decisions that the agency cannot justify in a court of law because the agency hasn’t done its homework or complied with the requirements of the Endangered Species Act,” said Patrick Milligan, an attorney who also serves as president of San Bernardino Valley Municipal Water District.

The Service, he added, is frequently sued by environmentalists, developers and other government agencies for making arbitrary decisions and failing to do its homework. Consider these recent lawsuits:

• Center for Biological Diversity vs. Bureau of Land Management: In this 2006 case, the Center for Biological Diversity challenged the Service’s decision to exclude certain areas from a critical habitat designation for Peirson’s milk-vetch. The court concluded that the exclusion was arbitrary and capricious because it was based on an erroneous interpretation of the ESA. The court also concluded that critical assumptions made by the Service were not based on the factual record.

• Home Builders Association vs. U.S. Fish and Wildlife Service: In this 2006 case, the Home Builders Association challenged the Service’s designation of more than 800,000 acres of land in California and Oregon for 15 vernal pool species. The court granted a motion by environmental groups that challenged the Service’s to exclude lands subject to conservation plans from the designation. The court held that the Service failed to comply with applicable legal standards and specifically failed to consider the recovery benefits of habitat designation in its economic analysis.

• Alliance for the Wild Rockies vs. Lyder: In this 2010 case, the Alliance for the Wild Rockies challenged a critical habitat designation for the lynx in Maine, Minnesota, Wyoming, Idaho and Washington. The court granted the Alliance’s motion for summary judgment, partly because the Service improperly and arbitrarily excluded areas of Montana, Idaho and Colorado from its designation. The court found that the Service failed to apply proper legal standards regarding the goal of habitat designation to its decision.

Earlier this year, the Service announced plans to review its implementation of the Endangered Species Act “to reduce the frequency and intensity of conflicts as much as possible,” while making implementation of the ESA “less complex, less contentious and more effective.”

Milligan said Service can reduce the intensity of conflict – as well as its vulnerability to lawsuits – by simply doing its homework, using the best available science in its arguments and following the law.

Discuss this Article 1

Anonymous (not verified)

on Aug 23, 2011

Having followed all three of these cases closely, I can tell you that the problem was never about the agency doing its homework. In each case, regional agency biologists identified all the areas needing protection. And in each case, they were overruled by politically motivated bureaucrats in the agency's Washington, D.C. office. Indeed, this is why the environmental groups were able to win the case: they demonstrated the politically motivated squashing of science via various emails and draft documents.

So...don't worry about the agency's ability to do good science. Worry about that science being purposefully ignored when developers, water users, ORV riders and other apply political pressure to limit habitat protection.